The real estate market is in full swing; this makes knowledge of the market vital. Thanks to our dedicated real estate team, we are always on top of the numerous market trends and new legislation. Whether it concerns construction, project development, real estate transactions, asset management or real estate funds and platforms; our advisers know what your business is dealing with and will assist you to achieve your goals and business objectives.
Sustainability increasingly more important
Following from both national and EU law, such as the Energy Efficiency Directive, stricter requirements apply in respect of new building energy consumption, usage, maintenance and multi-functionality. Combined with higher market standards and energy transition, this leads to growing interest in the redevelopment or transformation of existing buildings.
Stricter European climate legislation and a clear definition of Environmental Social and Governance factors (ESG) will dictate whether there is appetite for a development product. Real estate investors adapting quickly to the new requirements, will have access to more capital. With supply of new real estate being scarce, vacancy rates are slowing down, rents are higher and discount interest rates are decreasing.
As with all alternative investment funds, real estate funds show an increasing focus on the ESG effects of investments. It is therefore vital that real estate funds make sustainable investments when they are marketed as such. For this to happen, the European legislator has, among other things, implemented the Sustainable Finance Disclosure Regulation (SFDR). Read more on ESG.
As of 2023, the Environmental and Planning Act is expected to enter into effect, introducing a new reality for development regulations. This act revises the rules on zoning plans, environmental activities and permits. It will undoubtedly lead to administrative complexities – especially if municipalities are not ready to implement the new regulations.
Tax related trends: ATAD3 and Pillar Two
Under the proposed ATAD3 EU Directive, European entities with insufficient substance or a European entity largely (>60%) holding foreign real estate, will qualify as a ‘shell’, potentially resulting in adverse tax consequences. The legislation becomes effective in 2024, with a two-year review period and will be applicable to both new and existing structures. Read more on ATAD3.
It is expected that Pillar Two will come into force as per 2023. Groups with a turnover exceeding the EUR 750 million threshold will become subject to a minimum effective tax rate of 15%. As it stands, Investment Funds or Real Estate Investments Vehicles that function as an Ultimate Parent Entity classify as excluded entities and are therefore not subject to Pillar Two. However, a lot remains uncertain and future restructuring options may be limited, given the ambitious timeline for implementation. Read more on Pillar Two.
To align with international standards, the Dutch government announced an overhaul of the tax classification rules for Dutch and foreign entities. While it remains unclear when the new rules will become effective, the legislative proposal is scheduled for the third quarter 2023. Read more on this trend.
Changing housing needs & requirements
Prompted by the low availability of large-scale new build projects and propositions from developers, (institutional) investors are showing an increasing appetite for turnkey transactions with forward funding. In the residential market in particular, this is happening by means of share deals. Increasing interest can also be seen in housing, particularly for senior citizens and with healthcare provision. At the same time, there is a high demand for logistic centres and data centres.
Due to the limited availability of (social and mid-market) housing in the Netherlands, national and local governments are limiting the freedom to buy and let houses. One increasingly active restriction is the ‘buy-to-let’ prohibition, where it is – in short – prohibited to buy a house in a certain category or price range for the purpose of letting it to another party.
Additionally, municipalities often require a minimum amount or percentage of social or mid-market housing in housing unit developments, in exchange for cooperation or approval.
Substance & Tax Law
In recent years tax authorities have placed more emphasis on combatting the use of abusive and aggressive tax structures by companies operating across borders, to ensure fair taxation.
The European Commission recently issued a new proposal (ATAD 3). It is highly recommended that taxpayers assess the possible impact of the proposal and consider opportunities for strengthening their local footprint and/or restructuring.
ESG & Sustainable Investment
Sustainability is becoming an increasingly important factor in the decisions of investors, companies, consumers, shareholders and policy- and lawmakers. The broadly supported awareness for the Environmental Social and Governance (‘ESG’) objectives is reflected in many international voluntary standards as well as in an increasing number of European regulations to mobilise financing for sustainable growth.
Loyens & Loeff renewed its ESR Label awarded by the Institut National pour le Développement
The anti-hybrid mismatch rules of the EU Anti-Tax Avoidance Directive (ATAD2) aim to prevent situations of a double deduction and a deduction without a corresponding inclusion of the income at the level of the recipient resulting from a hybrid mismatch. All EU Member States have implemented ATAD2 in their domestic laws as from 1 January 2019 (for Belgium) or as from 1 January 2020 and 1 January 2022 (for a.o. the Netherlands and Luxembourg).
Implementing Pillar One & Pillar Two
To adapt international tax rules to an increasingly digitalised economy, the OECD/G20 Inclusive Framework proposes a two-pillar overhaul of the existing system as from 2023/2024. Tax directors and their teams can already model the impact and assess opportunities for manageable restructurings to mitigate the increased complexity.
On 6 October 2022, the OECD published a progress report on the Administration and Tax Certainty Aspects of Amount A of Pillar One
The implications of the COVID-19 pandemic reach across borders, industries, and legal disciplines. That is why Loyens & Loeff has set up dedicated expert teams - to offer you an integrated answer to all your legal and tax questions related to the coronavirus outbreak.
Op 12 maart 2020 werd door het kabinet aangekondigd dat vanwege COVID-19 iedereen die daartoe in staat was de komende twee weken thuis moest werken.
Reform of Belgian property law
In the Book 3 "Goods" of the Civil Code the main goal of the legislator was to better structure, modernise and integrate the law on goods into a single code. Moreover, the new law on goods had to be functional, useful and flexible.
The year 2022 should have been the year of recovery from the pandemic. It became a year of energy crises, sky-high inflation, and uncertainty over worldwide peace. Governments all over the world responded with measures to support their citizens, their companies, and their economic framework. So did Belgium.
Our firm is known for its integrated law and tax advice. We are used to working together and approaching projects in a multidisciplinary way. Being able to assist our clients both on legal and tax matters, we provide our clients with first class service and smart solutions at a one stop shop.
For many years this formula has proven to be a success, which is demonstrated by our steady client base and is evidenced by our continuous tier 1 rankings in various legal guides as well.
Project timelines at Loyens & Loeff are short, thanks to the number of specialists and the amount of expertise and experience within our firm. It is in our nature to get things done efficiently. Once a new project arises, lots of things must happen all at once. Due to the size of our (multidisciplinary) team, things never stand still and if necessary, we can scale up quickly.
Climate responsibility – and more broadly ESG – is of increased importance, also for real estate investors, financiers and occupiers. Our real estate experts are aware of all sorts of (EU) regulations and assist many clients in their ambition to improve the sustainability of existing assets or building new future proof assets.
As an example, we are the market leader in the development of roof solar projects on logistic properties. Our advice includes tax arrangements and cooperation with Energy Service Companies (ESCo’s) and energy suppliers, e.g., for underground thermal energy storage.
Thanks to our many years of experience, we are ahead of the game. We know what is going on, often before others do. This enables us to identify business opportunities for our clients at an early stage.
With a vast track record in inner-city development, including high-rise and mixed-use projects, we know the ins and outs of these projects. They often require specific regulation, municipality guidelines and agreements. Handling these complexities and challenges is day to day business for us and the many parties we work with.